16 Fla. L. Weekly Supp. 721a
Online Reference: FLWSUPP 168 AMEX
Insurance — Discovery — Appeals — Certiorari — Timeliness of petition — Because filing motion for reconsideration does not toll time for filing appeal of non-final order, petition for writ of certiorari filed within 30 days of order denying motion for reconsideration but more than 30 days after rendition of non-final order was untimely — Depositions — Location — Error to require defendant’s adjuster from Wisconsin to attend deposition in Miami-Dade County where defendant asserted affirmative defenses but did not seek affirmative relief through counterclaim, cross-claim or third-party complaint
AMEX ASSURANCE COMPANY, Petitioner, v. GABLES INSURANCE RECOVERY, INC., a/a/o Janet Fournier, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-142 AP. L.C. Case No. 07-2884 CC 21 (01). June 15, 2009. On certiorari review from the County Court of Miami-Dade County, Hon. Ana Maria Pando. Counsel: Douglas H. Stein, Seipp & Flick, for Petitioner. Anthony L. Tolgyesi of Tolgyesi & De La Rosa-Tolgyesi, for Respondent.
(Before FRIEDMAN, MUIR, and BAILEY, JJ.)
(PER CURIAM.) Gables Insurance Recovery, Inc. (“Gables Insurance”) filed a one-count complaint against AMEX Assurance Company (“AMEX”) alleging breach of contract. AMEX filed its answer and affirmative defenses. Gables Insurance noticed AMEX’s adjuster for a deposition duces tecum in Coral Gables, Florida. AMEX filed a motion for protective order, which opposed the deposition location because the adjuster works in DePere, Wisconsin.
The county court held that Gables Insurance “is entitled to take the deposition of the Adjuster in Miami-Dade County” because AMEX sought affirmative relief. AMEX filed a motion for reconsideration. The county court denied the motion for reconsideration. AMEX moves us to quash the county court’s order denying its motion for reconsideration and remand this matter with instructions for the trial court to grant the protective order.
Had AMEX timely filed its certiorari petition, our common law certiorari jurisdiction would lie to review this non-final order requiring AMEX’s adjuster to appear for deposition in Miami-Dade County. See Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So. 2d 1033, 1034 (Fla. 3d DCA 2002) (granting the petition where the defendant sought relief from a protective order “preventing it from taking the deposition of the corporate representative of the plaintiffs unless it first subpoenas these officers and travels to Wisconsin, where [defendant] Logitech is not seeking any affirmative relief”); Teledyne Industries, Inc. v. Mustang Ranch Aircraft, Inc., 753 So. 2d 785 (Fla. 3d DCA 2000) (granting certiorari relief from the “trial court’s order requiring the representative of the petitioner-defendant corporation to appear for deposition in Miami-Dade County instead of at the location of the defendant’s headquarters in Alabama” where the “defendant is not seeking affirmative relief”).
Here, the county court rendered the non-final order, denying the motion for a protective order, on December 9, 2008. It rendered the order denying the motion for reconsideration on February 10, 2009. AMEX filed its certiorari petition and appendix on March 12, 2009, thirty days after the order denying the reconsideration motion and ninety-three days after the county court denied the request for a protective order. The reconsideration motion did not toll the thirty (30) day jurisdictional window for filing a certiorari petition. Wagner v. Bieley, Wagner & Assocs., Inc., 263 So. 2d 1, 3 (Fla. 1972); E-Z Marine Supply, Inc. v. Wachovia Commercial Mortgage, Inc., 875 So. 2d 729, 730 (Fla. 4th DCA 2004). Therefore, we lack jurisdiction to review the non-final order denying the motion for a protective order. Fla. R. App. P. 9.100(c)(1); Medley Hardwoods, Inc. v. Rojas, 4 So. 3d 1270 (Fla. 1st DCA 2009). Although we lack common law certiorari jurisdiction to review the non-final ruling denying AMEX’s motion for a protective order, we must clarify, in dicta, the issue raised in the untimely certiorari petition since we notice this issue’s repetition. See Edgewater Beach Owners Ass’n, Inc. v. Bd. of County Comm’rs of Walton County, Florida, 694 So. 2d 43, 45 (Fla. 1st DCA 1997) (Benton, J., concurring) (“Whatever else it may accomplish, an appeal consumes additional resources”).
In justifying its non-final order requiring the adjuster to appear for deposition in Miami-Dade County, the county court relied upon Kaufman v. Kaufman, 63 So. 2d 196 (Fla. 1952), and an appellate order from this circuit appellate court, United Automobile Ins. Co. v. Del Grosso Chiropractic, 15 Fla. L. Weekly Supp. 1056a (Fla. 11th Cir. Ct. Sept. 15, 2008), cert. denied, 3D08-2853 (Fla. 3d DCA 2008). We recognize the potential confusion encountered by the county court in its reliance upon Del Grosso. The Del Grosso panel used the terms “affirmative relief” and “affirmative defenses” interchangeably, thus confusing the issue. 15 Fla. L. Weekly Supp. 1056a at ¶¶ 10 and 11. We issue this opinion to clarify that affirmative defenses differ from affirmative relief.
AMEX asserts that the non-final order violates the essential requirements of the law by requiring that the adjuster’s deposition occur in Miami-Dade County. The crux of the argument rests upon the difference between seeking affirmative relief and raising an affirmative defense. “[C]ounterclaims and affirmative defenses are separate and distinct terms.” Haven Fed. Savings & Loan Assoc. v. Kirian, 579 So. 2d 730, 733 (Fla. 1991) (emphasis added). See DeLisi v. Bankers Ins. Co., 436 So. 2d 1099, 1100 (Fla. 4th DCA 1983) (stating that “petitioner’s assertion of affirmative defenses does not constitute a voluntary application for affirmative relief . . . .”) (emphasis added). Specifically, a “counterclaim is a cause of action that seeks affirmative relief, while an affirmative defense defeats the plaintiff’s cause of action by a denial or confession and avoidance.” Kirian, 579 So. 2d at 733.
Having clarified that affirmative defenses differ from affirmative relief, we next consider how a defendant’s choice to seek affirmative relief influences the location for a deposition requested by the plaintiff. A defendant “will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief.” Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993) (emphasis added) (citing Kaufman v. Kaufman, 63 So. 2d 196 (Fla. 1952). In the instant matter, AMEX filed an answer with six (6) affirmative defenses. Its answer did not include a counterclaim, cross-claim, or third-party complaint; therefore, AMEX did not seek affirmative relief.
The county court violated the essential requirements of the law by requiring the adjuster, from Wisconsin, to appear for deposition in Miami-Dade County even though AMEX did not seek affirmative relief. Because AMEX did not timely file its certiorari petition, we lack jurisdiction to quash the non-final ruling denying AMEX’s motion for a protective order.
PETITION DISMISSED WITHOUT PREJUDICE TO POST-JUDGMENT APPEAL.
